Petitioner requests reconsideration of this Court’s July 16, 2007 Order approving and adopting 1

the Magistrate Angell Report and Recommendation (“R&R”). On April 12, 2007 Magistrate Angell’s

R&R was entered. Petitioner was notified that objections were to be filed no later than May 3, 2007. On

May 3, 2007,the Court granted Petitioner’s Motion for extension of time to file objections to the R&R.

Petitioner’s deadline was extended to July 9, 2007. Petitioner’s objections were not received by the

Court by the July 9, however Petitioner has provided the Court will a true and correct copy of a U.S.

Postal Service receipt which reflects that postage for Petitioner’s objections were prepaid with the date of

deposit being July 9. Thus, pursuant to Fed. R. A. P 25 (c)(Inmate filing), Petitioner’s objections are

timely and have been carefully considered by the Court as explained herein.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

 

JOSE ARMANDI COLON, :

Petitioner, :

: CIVIL ACTION 

v. : NO: 05-4343

:

DAVID DIGUGLIELMO, ET AL., :

Respondent. :

ORDER

AND NOW, on this ____ day of November, 2007, upon careful and independent

consideration of the pleadings and record herein, and after review of the Report and

Recommendation (the “R&R”) of United States Magistrate M. Faith Angell (Doc. 10),

Petitioner’s Objections (Doc. 13), and Plaintiff’s Motion for Reconsideration (Doc. 15), IT IS

HEREBY ORDERED AND DECREED that:

1. Petitioner’s Motion for Reconsideration is GRANTED.

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2. Petitioner’s Objections to the Magistrate Judge’s R&R are OVERRULED;

Petitioner Colon timely filed his objections to Magistrate Judge Angell’s

R&R. Colon reasserts claims identical to those in his Habeas Petition. The Court

reviews de novo Colon’s Habeas Petition.

3. The R&R is APPROVED and ADOPTED; 

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On October 5, 2001, a jury found Petitioner guilty of first-degree murder and

criminal conspiracy to commit murder. (R&R 1.) Petitioner was sentenced to a

mandatory term of life imprisonment for the first degree murder conviction, to run

concurrently with a ten (10) to twenty (20) year sentence for the criminal conspiracy

conviction. (Id.) On August 12, 2005, pro se Petitioner filed the instant habeas petition

with the Court seeking habeas corpus relief pursuant to 28 U.S.C. § 2254. 

United States Magistrate Judge M. Faith Angell’s Report and Recommendation

fully addresses Petitioner’s claims as presented in his habeas petition. In his

memorandum of law in support of the habeas petition, Petitioner asserts that he is raising

all claims which he presented to the state courts on direct appeal and in the PCRA forum. 

However, as Magistrate Angell correctly explains, throughout his memorandum,

Petitioner includes language which suggest additional claims or legal theories. The Court

will limit its review of the petition to issues properly raised and exhausted in the state

court system. Petitioners claim can therefore be properly read to include the following

claims:

1) The evidence was insufficient to sustain a first degree murder conviction because:

a. under a “transferred intent” theory, there was no evidence demonstrating

that Petitioner was involved in an exchange of gunfire that killed the

victim Leslie Samaniego, and 

b. the Commonwealth failed to establish that Petitioner Mr. Colon had any

role in causing the death of Ms. Samaniego; there was no evidence

connecting him with random shooting by a third party. 

(Mem. Support Habeas Pet. 28-29.)

2) The prosecutor’s comments about the September 11, 2001 World Trade Center

attacks (“9/11") deprived Petitioner of a fair trial in violation of the Sixth and

Fourteenth Amendments

(Id. at 30.)

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3) Trial counsel was ineffective for failing to call available witnesses Jana Hartsough

and Harold Jordan.

(Id. at 35-37.)

4) The Commonwealth committed a Brady violation when it failed to disclose a

surveillance videotape to the defense; or alternatively, trial counsel was

ineffective for failing to learn of the existence of the videotape.

(Id. at 41-45.)

5) “Brady was also violated by refusal to turn over Mr. Komotos’ statement.”

(Id. at 45.)

6) The trial court committed a Due Process error when it denied Petitioner’s motion

in limine, which sought to exclude uncharged bad acts relating to an earlier

shooting incident at Prince and King Streets.

(Id. at 49.)

Petitioner’s fifth habeas claim is unexhausted and procedurally defaulted. In order

for a federal court to grant habeas relief to a state prisoner, the prisoner must exhaust his

remedies in state court. O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). A petitioner

is not deemed to have exhausted the remedies available to him if he has a right under

state law to raise, by any available procedure, the question presented. 28 U.S.C. §

2254(c) (1994); Castille v. Peoples, 489 U.S. 346, 350 (1989). Furthermore, under 28

U.S.C. § 2254(b)(1), in order to satisfy the exhaustion requirement, state prisoners must

give the state courts “one full opportunity to resolve any constitutional issues by invoking

one complete round of the state’s established appellate review process.” Kendall v. AG

of Del., 2002 U.S. Dist. LEXIS 6549, *6 (citing O’Sullivan, 526 U.S. at 845). A claim

has not been fairly presented to the state court unless it was presented at “all levels of

state court adjudication.” Id. Thus, if a petitioner has not exhausted all state remedies

and “the court to which the petitioner would be required to present his claims in order to

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 The miscarriage of justice only applies “where a constitutional violation has probably resulted in the 2

conviction of one who is actually innocent. Kendall, 2002 U.S. Dist. LEXIS at *8 (quoting Murray, 477 U.S. at

496). In order to establish actual innocence, Petitioner must prove that “it is more likely than not that no

reasonable juror would have convicted him. Id.

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meet the exhaustion requirement would now find the claims procedurally barred,” the

claim is considered to be procedurally defaulted in the context of federal habeas review. 

Coleman v. Thompson, 501 U.S. 722, 735 (1991). 

A default should be excused where the prisoner “can demonstrate cause for the

default and actual prejudice as a result for the alleged violation of federal law, or

demonstrate that failure to consider the claims will result in a fundamental miscarriage of

justice.” Id. at 750. Cause for a procedural default must be shown by “some objective

factor external to the defense [that] impeded counsel’s efforts to comply with the state’s

procedural rule.” Kendall, 2002 U.S. Dist. LEXIS at *7 (citing Murray v. Carrier, 477

U.S. 478, 488 (1986)). Additionally, Petitioner must show that actual prejudice has

occurred, by establishing “not merely that the errors at . . . trial created a possibility of

prejudice, but that they worked to his actual and substantial disadvantage, infecting his

entire trial with error of constitutional dimensions.” Id. at *8. In the alternative, a

procedural default may be excused if Petitioner shows that “failure to review the claim

will result in a fundamental miscarriage of justice. Id. (citing Edwards v. Carpenter, 529 2

U.S. 446, 451 (2000); Wenger v. Frank, 266 F.3d 218, 224 (3d Cir. 2001). 

Here, the Petitioner’s fifth amendment claim is procedurally defaulted for

purposes of federal habeas review because Petitioner failed alert the state courts to the

federal nature of his claim. Furthermore, Petitioner has not stated any cause for default. 

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Thus, it is not necessary to review whether Petitioner suffered any actual prejudice. See

Engle v. Isaac, 456 U.S. 107, 134 n. 43 (1982).

Review of Petitioner’s sixth habeas claim is not appropriate in this Court. As 

Magistrate Angell aptly explained, the issue was raised on Mr. Colon’s direct appeal to

the Pennsylvania Superior Court as a state law claim and was rejected. (R&R 12.) 

Magistrate Angell correctly points out that any attempt by Petitioner to convert this claim

into a federal claim by adding due process language for the first time in this forum results

in an unexhausted and procedurally defaulted claim. (Id.)

Petitioner’s remaining claims were exhausted in the Pennsylvania Courts and thus

may be reviewed by this Court. However, AEDPA precludes habeas relief on “any claim

that was adjudicated on the merits in State court proceedings unless the adjudication of

the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of

the facts in light of the evidence in the State Court proceeding.”

28 U.S.C. § 2254(d)(Supp. 1998)

 After careful and independent review of the record, this Court finds that state

courts’ findings resulted in an outcome that can be reasonably justified under controlling

federal law. The state courts’ findings were not based on an unreasonable determination

of the facts nor were those findings contrary to Supreme Court of the United States

precedent. 

3. The Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, is

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DENIED and DISMISSED;

4. A certificate of appealability is NOT GRANTED.

5. The Clerk of the Court shall mark this case as CLOSED.

BY THE COURT:

/s/ Petrese B. Tucker

____________________________

Hon. Petrese B. Tucker, U.S.D.J.

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